Excerpt: - .....submitted to a magistrate falls within the definition of complaint under section 4(h) of the code of criminal procedure. consequently the provisions of section 48 of the prohibition act are not a bar to the application of section 247, criminal procedure code, to the instant case and the order of acquittal cannot be challenged on that ground.5. the learned public prosecutor next pressed on me another argument namely, that as no summons was issued in this case, the applicability of section 247 is taken away. it is maintained that as a person accused of an offence under the prohibition act could be arrested without a warrant, there would be no necessity for the issue of summons and so, section 247 would not be attracted to such a case. this submission cannot also prevail. section 15.....

Judgment:

Chandra Reddy, J.

1. This appeal raises a question relating to the interpretation of Section 247 of the Code of Criminal Procedure. It is filed by the Public Prosecutor against the order of the Second Class Magistrate acquitting the respondent under Section 4 (1) (a) of the Madras Prohibition Act. It was the prosecution case that the respondent was found in possession of 24 drams of I. D. arrack in an aluminium vessel at 6-30 P. M. on 12th April, 1954, at Gopalapatnam near his tea-stall, an offence punishable under Section 4 (1) (a) of the Madras Prohibition Act, The case was taken on file on the report of the Deputy Prohibition Officer on 24th June, 1954 and posted for trial to 1st July, at 1 P. M., to suit the convenience of the Prohibition Inspector.

On 1st July, 1954, the Prohibition Officer sent a letter requesting the Court that it may not be taken up till 3 P. M. At about 4 P. M. the case was called and as the Sub-Inspector did not appear while the accused and his lawyer were present, the Magistrate acquitted the accused under Section 247, Criminal Procedure Code. It is against this order that the present appeal is filed,

2. The point for determination in this appeal is whether the order of acquittal is correct, It is urged by the learned Public Prosecutor that the lower Court ought to have dispensed with the attendance of the Deputy Prohibition Officer and proceeded with the case as he is a public servant within the meaning of proviso to Section 247, Criminal Procedure Code. This contention cannot be given effect to. It does not appear that the case could proceed in the absence of the complainant nor any such request made to the Court. In fact, the officer concerned wanted the case to be taken up after 3 P. M. It is nowhere stated that the presence of this officer was not required.

It does not appear that there was any other witness present that day which means that the case against the accused turned mainly on the evidence of the prohibition officer. It is only in case where the personal attendance of the complainant is not necessary that the proviso will be attracted. Nor it is obligatory on the Magistrate to dispense with the attendance suo motu and proceed with the case.

3. Another contention raised by the Public Prosecutor is that the present case does not come within the operation of that section for the reason that the case was not started on a complaint but on the report of Prohibition Officer According to him, a case under the Prohibition Act has to be initiated by a Police or Prohibition Officer sending a report to the concerned Magistrate in the manner indicated in Section 48 of the Prohibition Act and the report of a Prohibition Officer is more in the nature of a charge-sheet rather than a complaint. The position of a Prohibition Officer should be equated to that of a Police Officer for the purpose of Section 48, argues the learned Public Prosecutor.

This argument cannot prevail. A Prohibition Officer shall be deemed to be a Police Officer only for the purpose of Section 125 of the Indian Evidence Act, 1872, which means he will be treated as a Police Officer only for a limited purpose. He cannot be regarded as a Police Officer for any other purpose. In Venkatareddy v. Emperor ILR (1948) Mad 574 : AIR 1948 Mad 116 (A), Justice Rajamannar (as he then was) decided that a Prohibition Officer was not a Police Officer within the meaning of Section 25 of the Evidence Act. To the same effect is the judgment of Mr. Somasundaram in Srinivasa Narasimha. Bayanker v. State 1954 Mad WN C59 (B), who ruled that a Prohibition Officer was not a Police Officer either within the meaning of Section 162, Criminal Procedure Code, or Section 25 of the Indian Evidence Act.

I express my respectful accord with these rulings. It has also to be remembered that the report of a Police Officer was not a complaint by virtue of Section 4(h) of the Criminal Procedure Code, which has specifically excluded the report of a Police Officer. But for this exclusion, the report of even a Police Officer would have come under the category of a complaint.

4. In my opinion, the expression 'complaint' is comprehensive enough to include also reports by Public Officers except those specifically excluded from its operation. That apart, this opinion of mine is reinforced by a judgment of a Bench of the Calcutta High Court in Radhika Mohan v. Hamid All ILR 54 Cal 371 : AIR 1927 Cal 405 (C), where it was held that a report of a Prohibition Officer is a complaint within the meaning Section 4(h) of the Criminal Procedure Code. There could, therefore, be little doubt that the report of a Prohibition Officer submitted to a Magistrate falls within the definition of complaint under Section 4(h) of the Code of Criminal Procedure. Consequently the provisions of Section 48 of the Prohibition Act are not a bar to the application of Section 247, Criminal Procedure Code, to the instant case and the order of acquittal cannot be challenged on that ground.

5. The learned Public Prosecutor next pressed on me another argument namely, that as no summons was issued in this case, the applicability of Section 247 is taken away. It is maintained that as a person accused of an offence under the Prohibition Act could be arrested without a warrant, there would be no necessity for the issue of summons and so, Section 247 would not be attracted to such a case. This submission cannot also prevail. Section 15 of the Prohibition Act enacts that all offences under the Act shall be cognizable and the provisions of the Criminal Procedure Code with respect to cognizable offences shall apply to them.

The only effect of this section is that notwithstanding the second schedule to the Criminal Procedure Code says that only persons accused of offences punishable with a particular minimum imprisonment could be arrested without a warrant the Legislature chose to make offences under the Madras Prohibition Act cognizable irrespective of the punishment. However, that does not make any difference as to the procedure to be adopted in Court. That does Rot affect the question whether it is Chapter 20 or Chapter 21 of the Code that applies. When once the Magistrate takes on his the a case he will decide whether a summons will issue in the first instance or a warrant should issue under Section 204, Criminal Procedure Code.

The fact that an accused person could be arrested without a warrant would not make any difference in regard to the question whether a summons or a warrant should be issued by a Magistrate when he takes cognizance of it. This is made abundantly clear by Section 242, Criminal Procedure Code, which contemplates either the accused appearing of his own accord or being brought before the Magistrate.

6. All offences have to be tried before a Magistrate either as a summons case or as a warrant case. In dealing with the procedure, the Code speaks of a summons case or a warrant case and the nature of the offence would not be considered in that context. A case becomes a summons or a warrant case according to the measure of punishment prescribed for an offence. The only question, therefore, in regard to the applicability of the procedure is whether the case is a summons case or a warrant case. All cases which are punishable with death, transportation or imprisonment for terms exceeding six months are warrant cases and the others are summons cases.

So, the criterion in determining whether a case is a summons case or a warrant case is the punishment provided for an offence. The offence under Section 4 (1) (a) of the Prohibition Act is punishable with a term extending to six months. Obviously, such a case is a summons case. If so, the procedure laid down in Chapter 20 should be applied to an offence under Section 4 (1) (a) of the Prohibition Act. Section 247 occurs in the Chapter dealing with the procedure for summons case and it follows as a corollary that it applies to all summons cases. It also appears that in this case the procedure applicable to summons case has been followed. '

Summons was issued to the party and as soon as he appeared on the first occasion the particulars of the offence were stated to him as required by Section 242, Criminal Procedure Code. In these circumstances, the instant case comes within the purview of Section 247 and the Magistrate was right in applying it to this case. The order of acquittal is therefore correct and does not call for interference and the appeal is dismissed.

7. As the respondent was not represented, I appointed Sri P. Chennakesava Reddy to assist me as the question to be decided in this case is of general importance and he will be paid a sum of Rs. 50 by way of remuneration.